VOL. 6 | NO. 05 DRIVING FOR AUTOMOTIVE EDUCATION Page 10
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VOL. 6 • NO. 05 PRESIDENT Dan Bennett, REM, IOM, CAE NHADA OFFICERS Marshall Jespersen, Chairman Jim Boyle, Vice Chairman Jeff Platek, Treasurer Shawn Hanlon, Secretary NHADA DIRECTORS John Sawyer Jr., Immediate Past Chair Michael Lampert, Franchised Heavy Duty Truck John Crowley, Franchised New Car Tim Foss, Franchised New Car Jason LaCroix, Franchised New Car Dennis Gaudet, Independent Used Car Ron Poirier, Independent Repair/Service David Hammer, NADA Director George Mullin, Franchised/Independent Jessica Trask, Franchised New Car Roger Groux, Advisory Director Mike Petell, Franchised/Motorcycle ©2024 New Hampshire Automobile Dealers Association (NHADA) | The newsLINK Group LLC. All rights reserved. Drive New Hampshire is published six times each year by The newsLINK Group LLC for the NHADA and is the official publication for this association. The information contained in this publication is intended to provide general information for review, consideration and education. The contents do not constitute legal advice and should not be relied on as such. If you need legal advice or assistance, it is strongly recommended that you contact an attorney as to your circumstances. The statements and opinions expressed in this publication are those of the individual authors and do not necessarily represent the views of the NHADA, its board of directors or the publisher. Likewise, the appearance of advertisements within this publication does not constitute an endorsement or recommendation of any product or service advertised. Drive New Hampshire is a collective work, and as such, some articles are submitted by authors who are independent of NHADA. While Drive New Hampshire encourages a first-print policy, in cases where this is not possible, every effort has been made to comply with any known reprint guidelines or restrictions. Content may not be reproduced or reprinted without prior written permission. For further information, please contact the publisher at (855) 747-4003. A Message From the President 4 New NH Law Changes Temp Plate Process for MA Residents RDMV 938 Form No Longer Required By Dan Bennett, REM, IOM, CAE, President, NHADA A Message From the Chair 6 Highlighting NHADA’s Largest Event: The Annual Convention By Marshall Jespersen, Chairman, NHADA, ICL Autos NADA Updates 8 Federal Judge Blocks FTC’s Non-Compete Clause Ban By David Hammer, Contemporary Automotive, NADA Director CARS Rule Showdown Key Insights from the Fifth Circuit Oral Arguments and What Dealers Need to Prepare for Now By David Hammer, Contemporary Automotive, NADA Director 10 Driving for Automotive Education By Kaleena Guzman, Director of Events & Partnership, NHADA 12 The Most Important Tool in Our Workers’ Comp. Toolbox: Managed Care By Pete Sheffer, VP and Director of Insurances, NHADA 14 Fraud in the Parts Department Is Your Dealership Protected? By Laura Everett, CPA, Albin, Randall & Bennett, NHADA Silver Partner 15 Defensive Driving and Winter Safety Trainings By Brian Duplessis, Loss Prevention Supervisor, NHADA 16 Annual Warranty Labor Rate Increase Statutory or Factory Submission? By Jordan Jankowski, Armatus Dealer Uplift, NHADA Bronze Partner 18 Revving Up Careers in Automotive Kicking Off Recruitment Season By Adam Memmolo, Workforce Development Coordinator, NHADA 19 Elections Have Consequences By Dan Bennett, REM, IOM, CAE, President, NHADA 20 Are You Prepared To Help Save a Life? By Matt Foster, CSP, Senior Loss Prevention Consultant, NHADA 22 LotDrop The 2024 Autumn Collection 24 NHADA Membership Milestones Q4: Oct. 1, 2024-Dec. 31, 2024 24 NHADA New Members 25 By the Numbers 26 Thank You, 2024 NHADA Partners! CONTENTS 3
The legislative and regulatory landscape involves both defense and offense from NHADA. For years, we have defended against legislation aiming to weaken the vehicle safety inspection program. Recently, we went on the offense to change a law for the betterment of the industry. On Aug. 2, 2024, HB 1243 was signed to law by Gov. Sununu, effectively changing the way New Hampshire dealers sell vehicles to Massachusetts residents for the better. Originally introduced as a Banking Department bill, HB 1243 was amended by Sen. Donovan Fenton (D-NH-10) to permit New Hampshire dealers, who were previously prohibited, to issue temporary plates to Massachusetts residents. This bill also eliminates the requirement that a retail motor vehicle dealer submit a form notifying the New Hampshire Division of Motor Vehicles (DMV) of a sale of a vehicle to a Massachusetts resident. The elimination of this will streamline the vehicle sales process. TEMPORARY PLATE/REGISTRATION DISCLAIMER FOR MASSACHUSETTS RESIDENTS When issuing temporary plates to Massachusetts residents, NHADA strongly recommends using a form titled, “Temporary Plate/Registration Disclaimer for Massachusetts Residents.” This helps ensure that both the dealer and consumer are protected. The form, pictured here, is available for purchase on NHADA’s online store. You can also place an order by calling our products team at (603) 224-2369 or emailing nhadservices@nhada.com. This form acknowledges the buyer’s understanding of the laws of the Commonwealth of Massachusetts, including obtaining a permanent registration in a timely manner, paying Massachusetts sales or use tax and more. For questions or additional guidance on complying with HB 1243, please contact me directly at dbennett@nhada.com or (603) 224-2369. FAQS/BEST MANAGEMENT PRACTICES (BMP) BMP: When selling a used car, the best management practice is to not deliver the vehicle to the customer unless you, as the dealer, have the title in your possession. Q: What if the customer leaves the lot with their own plates? A: You should still include the temp plate in the deal jacket. A MESSAGE FROM THE PRESIDENT NEW NH LAW CHANGES TEMP PLATE PROCESS FOR MA RESIDENTS RDMV 938 Form No Longer Required BY DAN BENNETT REM, IOM, CAE, PRESIDENT, NHADA Important Note: HB 1243 only changed the law in New Hampshire regarding the issuance of temporary plates; it did not affect any Massachusetts laws or regulations. Each individual dealer should assess the new rule and develop best management practices relating to the new plate issuance process. 4
Q: Do I still need to fill out the “Vehicle Sold to a Massachusetts Resident Form (RSA 261:56-a)?” A: No, issuing a temp plate to the customer serves the purpose of alerting the New Hampshire DMV. The RDMV 938 form is no longer required. Q: Do I have to use the new disclaimer form? A: While the disclaimer form is not required, it is highly recommended as a best management practice and limits your liability. It protects you in the instance the customer is pulled over and claims they were unaware of their obligations as the customer/Massachusetts resident. Again, NHADA highly recommends using this form. Q: Am I required to fill out the title application, or can the customer do this on their own at the Massachusetts RMV? A: You do not need to fill out a Massachusetts title application, the customer can do this on their own at the RMV, however, many NHADA members use a “runner” or a dealership employee to process the title application. In this example, the customer still leaves your lot with the temp plate, however, you are processing the title application on their behalf to eliminate the risk of you becoming liable for the vehicle if the customer does not meet their obligations. If the customer never gets the vehicle titled/perfects the lien, you are on the hook as the owner of the vehicle and responsible for the cost. Q: Has Massachusetts changed its regulations to allow for the mailing of a title application? A: HB 1243 only effects the vehicle sales process in New Hampshire, and you should follow the same Massachusetts regulations you previously have followed. WHAT DID DEALERSHIP TRANSACTIONS IN GREATER NEW ENGLAND LOOK LIKE IN 2023? The Phillips Report is the only publication that specifically speaks to auto dealership transaction values, trends and trajectories in the New England and New York market areas. DOWNLOAD THE 2023 YEAR END REPORT WWW.NANCYPHILLIPS.COM 5
For years, members and partners have gathered at the annual convention to network with industry peers, exchange business ideas and enjoy some quality time with their families. Many attendees have even forged lifelong friendships at this event! Traditionally held in early summer, the convention has been hosted at premier venues across central and northern New Hampshire, including the Omni Mount Washington Resort & Spa, Mountain View Grand and, more recently, Mill Falls at the Lake in Meredith. On June 13-15, 2025, the convention will take place in Portsmouth, New Hampshire, at the AC Hotel, featuring a new format. Usually spanning two nights, next year’s event will be condensed into a one-night, two-day experience packed with activities for you and your family. A standout event will be “Casino Night,” where you can try your luck with funny money and compete for exciting prizes. More details will be provided as the event approaches. For any questions, please contact Kaleena Guzman, director of Events & Partnership, by calling (603) 224-2369. A MESSAGE FROM THE CHAIR HIGHLIGHTING NHADA’S LARGEST EVENT: THE ANNUAL CONVENTION BY MARSHALL JESPERSEN CHAIRMAN, NHADA, ICL AUTOS My wife, Elena, and I with Robert Quinn, commissioner of the Department of Safety at the 2024 NHADA Convention. 6
FEDERAL JUDGE BLOCKS FTC’S NON-COMPETE CLAUSE BAN NADA UPDATES On Aug. 20, 2024, a federal judge upheld a challenge to the Federal Trade Commission’s (FTC) Non-Complete Clause Rule (Rule), blocking it nationwide. It was originally scheduled to go into effect on Sept. 4. The Rule, which faced numerous court challenges, aimed to invalidate most non-compete clauses in the United States, subjecting violators to fines, penalties and injunctive relief. The court’s decision blocks the Rule nationwide, and businesses do not need to take steps to comply with the rule. MORE ABOUT THIS MATTER On April 23, the U.S. Chamber of Commerce (Chamber) sued the FTC over its Rule. On Aug. 20, 2024, the court granted the Chamber’s motion for summary judgment holding that the FTC’s Rule “shall not be enforced or otherwise take effect” because “the FTC lacks substantive rulemaking authority with respect to unfair methods of competition.” The Rule was scheduled to be effective Sept. 4. The Rule banned new non-compete agreements with all workers. Additionally, it required employers to tell workers (current and former) that existing non-compete agreements were no longer enforceable, although the ban included an exemption for current non-competes covering “senior executives.” WHAT’S NEXT (AS OF THIS WRITING) Dealerships do not have to comply with the Rule and should set aside previous guidance issued by NADA in preparation for the effective date. The FTC has indicated that they may appeal the case, and NADA will keep members updated as necessary. NADA, as part of a broad coalition led by the Chamber, drafted and submitted comments in response to the original proposed rule. These comments challenged, among other issues, the FTC’s authority to issue this rule. MORE NADA RESOURCES Email & Telemarketing Restrictions https://bit.ly/3TLZIPb FTC Actions Warrant Dealers Attention https://bit.ly/4dmEa2w Corporate Transparency Act Reporting Requirements https://bit.ly/4gICy5P CARS RULE SHOWDOWN Key Insights from the Fifth Circuit Oral Arguments and What Dealers Need to Prepare for Now On Oct. 9, 2024, a three-judge panel of the Fifth Circuit Court of Appeals in New Orleans heard oral arguments regarding the Petition for Review filed by the National Automobile Dealers Association (NADA) and the Texas Automobile Dealers Association (TADA) challenging the FTC CARS Rule (a.k.a. The Vehicle Shopping Rule). The case is National Automobile Dealers Association & Texas Automobile Dealers Association v. FTC, No. 24-60013, 5th Cir. (Jan. 5, 2024). The FTC CARS Rule is a sweeping trade regulation rule that will introduce strict regulations for motor vehicle dealers. The Rule has numerous requirements that will affect all aspects of dealers’ sales operations including advertising practices, consumer disclosures and recordkeeping, requiring dealerships to make substantial operational adjustments to comply. Although the Rule has been finalized, its implementation has been voluntarily “stayed” — meaning delayed — by the FTC pending the resolution of this legal challenge brought by NADA and TADA. Highlights from the Oral Argument: The oral argument largely revisited the points raised in the briefs, with extensive discussion on federal agency rulemaking. Specifically, the Court and parties debated whether this Rule was a trade regulation under Section 18 of the FTC Act which requires an Advance Notice of Proposed Rulemaking (ANPRM), or if it was, as the FTC contends, issued pursuant to the authority under the Dodd-Frank Act (which does not require an ANPRM), and if the Rule separately required an ANPRM based on the FTC’s own internal rulemaking procedures. The judges asked several questions regarding appellate authority on these issues, the legislative history of the rulemaking process, and whether, if an ANPRM was required for the CARS Rule, the failure to issue an ANPRM was a “harmless error” — meaning the absence of an ANPRM did not cause any significant harm and would not invalidate the Rule. Several of the judges appeared receptive to NADA’s arguments, with NADA appearing better prepared to address the Court’s questions, while the FTC attorney at times hesitated and struggled to provide clear answers to some questions. At times, the judges expressed skepticism about both parties’ contentions on whether the court should or was empowered to act. On the topic of “harmless error,” NADA argued that the error was not harmless, as NADA and dealers lacked sufficient time to respond to the numerous questions raised in the Notice of Proposed Rulemaking (NPRM) and to properly analyze the cost-benefit impacts. The lack of an ANPRM meant BOTH ARTICLES BY DAVID HAMMER, CONTEMPORARY AUTOMOTIVE, NADA DIRECTOR 8
that the critical threshold question of whether a rule was needed at all was not open to comment. The FTC countered that NADA did fully engage in the rulemaking process and, when questioned by the Court, noted that the agency had revised its time-savings estimate (from three hours to two hours) based on NADA comments, and removed the requirement to provide a list of add-ons. As an aside, NADA had initially requested an extension to respond to the NPRM during the CARS Rule rulemaking process, but this request was denied by the FTC. During the discussion of the cost-benefit analysis, one judge cited the Truth in Lending Act (TILA) as an example, noting that it took 10–20 years of litigation before courts outlined with clarity the scope of the required disclosures and predicted a similar protracted process for this Rule. A key clarification the FTC attorney made (which reiterates FTC commentary in the Rule) was that the “Offering Price” required under the Rule is a ceiling, not a floor — meaning dealers can negotiate down from the offering price but are not restricted to a fixed price. An interesting exchange occurred when the FTC attorney stated that the CARS Rule would allow the agency to seek monetary penalties and consumer redress for violations. In rebuttal, the NADA attorney pointed out that such remedies are only available to the FTC if rulemaking procedures requiring an ANPRM are followed. This could potentially pose a challenge for the FTC if they prevail in this case but later seek to impose penalties or obtain consumer redress. As expected, the Court took the matter under submission, and a written opinion will be issued at a later, unknown date. What to Expect Next: The Fifth Circuit has a reputation for taking a more critical look at federal agencies’ rulemaking. This means the Court carefully scrutinizes whether agencies like the FTC are implementing policies that go beyond what Congress has authorized. For example, the Court has recently struck down certain agency actions, emphasizing the Court’s view that significant decisions affecting the economy or individual rights should be made by elected officials, not by agencies acting independently. As previously noted, the CARS Rule case involves a somewhat technical argument that the FTC did not follow required rulemaking procedures, whereas the FTC argues that it followed the required rulemaking procedures. There is no deadline for the Fifth Circuit to issue its written ruling, though typically decisions are issued within two to six months after oral argument. It is likely we will have the Court’s ruling by early 2025. Depending on the ruling, it is possible that a party may appeal to the U.S. Supreme Court. If the ruling from the Fifth Circuit favors the FTC, however, the FTC may attempt to implement the CARS Rule pending any appeal to the Supreme Court. What Dealers Should Do in the Meantime: Although the legal challenge to the Rule might succeed, requiring the FTC to revisit its approach and even potentially start the rulemaking process over, the reality is that complying with the Rule’s broad and complex requirements will demand a considerable amount of time, effort and resources and place a significant strain on dealership staff. As a result, it is essential for dealers to take proactive measures now to be prepared if the Rule becomes effective. Furthermore, according to the FTC, many of the Rule’s prohibitions and requirements are simply formalizing existing regulations. In other words, regardless of the CARS Rule’s final outcome, dealers must review and adjust their advertising, F&I and related practices accordingly because many of these requirements already exist in different forms. Indeed, recent enforcement actions against dealers initiated by the FTC and state attorneys general demonstrate that regulatory enforcement will continue and increase regardless of whether the CARS Rule becomes effective. Dealerships should proactively prepare for the CARS Rule by reviewing their advertising practices to ensure compliance. This includes preparing to clearly display the “Offering Price” in all advertisements for specific vehicles or those referencing monetary amounts or financing terms. The Offering Price is the all-in cash price that a dealer will sell a vehicle to any buyer excluding only charges imposed by the government. Under the CARS Rule dealers must also disclose the total of all payments if a monthly payment is mentioned and avoid any misrepresentations. Establishing comprehensive disclosure processes is essential; employees should be trained to provide mandatory disclosures both in writing and verbally during initial communications with consumers, whether in person, online or over the phone. Additionally, dealerships need to plan for obtaining and documenting express informed consent before charging for any items, including optional add-ons, and upgrade their recordkeeping systems to meet the Rule’s 24-month requirement. Employee training on the new compliance standards is important for successful implementation. Staff must understand the requirements around disclosures, advertising and recordkeeping, particularly the necessity to disclose the Offering Price in the first response to any consumer inquiry about a specific vehicle or financing terms. Dealers should also review and update vendor contracts to ensure all third-party services are compliant with the Rule. For a more in-depth analysis of the CARS Rule, NADA members are encouraged to consult the recently-published Driven publication called “A Dealer Guide to the FTC Vehicle Shopping Rule,” which was co-authored by ComplyAuto, by visiting nada.org. Note: this article was sourced from NHADA Diamond Partner, ComplyAuto. To read the full version of this article, please visit https://complyauto.com/2024/10/10/cars-ruleshowdown-key-insights-from-the-fifth-circuitoral-arguments-and-what-dealers-need-toprepare-for-now. 9
DRIVING FOR AUTOMOTIVE EDUCATION BY KALEENA GUZMAN DIRECTOR OF EVENTS & PARTNERSHIP, NHADA The Drive for a Tech Golf Tournament was nothing short of extraordinary! The day was filled with impressive displays of golfing talent, hearty laughter and a strong sense of camaraderie. Most importantly, it was a day where our members and partners came together to champion a cause that’s deeply important to us all: advancing New Hampshire’s automotive workforce through the scholarships provided by the NH Automotive Education Foundation. We’d like to take this opportunity to express our sincere thanks to everyone who made the event possible. A huge shoutout goes to our exceptional sponsors, with special recognition to Auto Auction of New England, our PRIME Sponsor. PRIME Sponsor Reception Sponsor Air Cannon Sponsor At the Turn Lunch Sponsors Golf Cart Sponsor Putting Contest Sponsor Birdie Ball Sponsor Northeast Delta Dental Breakfast Sponsor Volvo Cars Exeter Closest to the Pin Sponsor Albin, Randall & Bennett Driving Range Sponsor ProActive Leadership Group Golf Sauce Sponsor Gordon-Darby NHOST Services Hole-In-One Sponsor ICL Autos Longest Drive Sponsor New England Kenworth Wheel of Fortune Sponsors Grappone Automotive Group Northeast Delta Dental Tee & Green Sponsors ArentFox Schiff McFarland Ford Phillips Auto Sales Inc. Portsmouth Ford Quirk Auto Dealers NH Zurich Tee Sponsor Ballard Truck Center Gordon-Darby NHOST Services Vegas Card Sponsor EasyCare Goodie Bag Item Sponsors Auto Auction of New England New England Kenworth Northeast Auto Auction TMS Diesel Our heartfelt appreciation also goes out to all the members and partners who joined us on the course. Your energy and dedication are what propel us forward, and it’s a true testament to the strength of our association that we can come together for such a meaningful purpose. 10
CHALLENGE WINNERS CLOSEST-TO-THE-PIN $25 PRO SHOP CREDIT MEN’S Hole #3 Joe O’Reilly, Phillips Auto Sales Hole #16 Joe Bradley, Bradley Auto Finance WOMEN’S Hole #3 MaryBeth Alosa, New England Kenworth Hole #16 Denise Alosa, New England Kenworth LONGEST DRIVE $25 PRO SHOP CREDIT MEN’S Hole #1 Chuck Hoegen, AutoFair Hole #17 Jerry Pollastrone, Werner Mazda WOMEN’S Hole #1 Denise Alosa, New England Kenworth Hole #17 Denise Alosa, New England Kenworth VEGAS CARD $25 PRO SHOP CREDIT Adam Veinotte, Northeast Auto Auction OVERALL GOLF WINNERS 1ST PLACE TEAM $100 PRO SHOP CREDIT CJ Fitzwater, Northeast Auto Auction Spike Fortin, Northeast Auto Auction Mike Colburn, Northeast Auto Auction Adam Veinotte, Northeast Auto Auction 2ND PLACE TEAM $75 PRO SHOP CREDIT Eric Werner, Werner Mazda Matthew Lemire, Werner Mazda Jerry Pollastrone, Werner Mazda Rick Baril, Werner Mazda 3RD PLACE TEAM $50 PRO SHOP CREDIT Chuck Hoegen, AutoFair Trevor Stuart, AutoFair Dan Wood, AutoFair Phil Gregoire, AutoFair Because of your participation in our tournament, we’re moving closer to our goal of awarding over $60,000 in scholarships annually, empowering students to build a future in the automotive industry. We sincerely thank you all once again, and we look forward to another successful Drive for a Tech Golf Tournament next year! 11
WHAT IS MANAGED CARE? In 1991, the New Hampshire Legislature passed a Managed Care pilot program as part of a Workers’ Compensation reform bill. Managed Care was successfully utilized in other states to help control workers’ compensation costs by using nurse case managers or injury management facilitators (IMFs) to assist the injured worker with accessing the most appropriate and specialized medical treatment available within a network of providers immediately after an injury occurs. The providers within the network have been trained to treat injured workers promptly, even in areas of specialty, which can otherwise be difficult to access on a timely basis. Based on the success of the pilot program, in 1994, the New Hampshire Legislature passed legislation making Managed Care part of the Workers’ Compensation Statute. Approval to operate a Managed Care Organization is granted by the New Hampshire Workers’ Compensation Advisory Council on the recommendation of the Department of Labor. RSA 281-A: 23-a of the Workers’ Compensation Statute and Labor Department Regulation, Lab 700, govern managed care in New Hampshire. WHY DO EMPLOYERS PARTICIPATE IN MANAGED CARE? Managed Care is a proven method in reducing the premium employers pay for workers’ compensation coverage and, for NHADA, it increases the money available for rebates. The network medical providers have been trained over the years to understand the importance of returning injured workers to work in a safe and prompt manner. The Injury Management Facilitator’s relationship with the injured worker and the medical providers is also critical to the success of the program. That relationship allows for prompt medical appointments within the appropriate medical specialty. In turn, the injured employee promptly receives the best treatment available and returns to work in a timely manner. IS IT LEGAL TO TELL EMPLOYEES WHERE TO TREAT FOR A WORKERS’ COMPENSATION INJURY? If the employer is a participant in a formal Managed Care program, then their injured workers must choose from providers within the network. There are some special circumstances, outlined in Lab 700, in which an injured worker may be treated outside the network; this includes prior treatment for the same or similar injury within the last six months or if the specialty they require is not available within the network. Except in these special circumstances, the workers’ compensation carrier will not cover treatment outside of the network. WHAT IF AN INJURED WORKER IS NOT HAPPY WITH THE PHYSICIAN THEY CHOOSE? Not everyone “clicks” with their provider. An advantage to having an injury management facilitator is that they are there to assist the injured worker with this situation. Transfer of care or a second opinion is available to the injured worker within the network of providers. The injury management facilitator can assist the injured worker with finding another provider or verifying the network status of one with whom they may be interested in treating. An injured worker may not treat with more than two similar providers within the managed care guidelines. Injured workers should always contact their injury management facilitator if they are interested in changing physicians. WHAT CAN NHADA MEMBERS DO TO GET THE GREATEST BENEFIT FROM OUR MANAGED CARE PROGRAM? Employees need to be trained in advance of an injury so that they know they are participants in a formal Managed Care program, and they need to know what to do when an injury occurs. Employees must be provided with the NHADA Workers’ Comp. Managed Care brochure at the time of hire and an NHADA Managed Care poster should be hung in clear view of all employees. THE MOST IMPORTANT TOOL IN OUR WORKERS’ COMP. TOOLBOX: MANAGED CARE BY PETE SHEFFER VP AND DIRECTOR OF INSURANCES, NHADA 12
Employees must call the NHADA injury management facilitator, Marta Silakka, immediately after an injury occurs so that she can help the employee choose the best network provider based on the injury. Employers’ and employees’ knowledge of Managed Care and appropriate reporting requirements will ensure that they follow the appropriate protocol after an injury occurs and get off on the right foot immediately. NHADA members who are prepared to take injured workers back to work in advance of an injury will have the best outcomes after an injury occurs. NHADA’s claims staff can help members prepare for temporary alternate duty. We can also provide members with posters and tri-folds as needed and provide members with training on how best to educate and inform employees of the managed care and workers’ compensation process. WHEN COMPLETING THE EMPLOYERS FIRST REPORT OF INJURY (FORM 8WC), HOW SHOULD NHADA-WCT MEMBERS FILL OUT BOX #47? Box #47 reads “Managed Care Program Y or N. If yes, name provider.” The answer is yes, and the name of the provider is Windham Managed Care. Windham Managed Care is NHADA’s current managed care program, and we utilize their network of providers. The NHADA WCT Managed Care Program is successful because our members pay attention to following the appropriate protocols. Workplace injuries must be handled differently than personal health conditions. The employee’s primary care physician is there to treat non-work-related conditions. Our managed care network physicians understand the importance of prompt treatment and prompt referrals to specialty providers to maximize healing and resumption of activities in and out of work. Emergency rooms must be reserved for life-threatening injuries. Most injuries can be treated at urgent care centers such as ConvenientMD, and if necessary, they will refer to the emergency room or a higher level of specialty. Remember, a call to our injury management facilitator, Marta Silakka, immediately after an injury occurs at (800) 852-3372 is the best way to begin the workers’ comp. process. NHADA members who are prepared to take injured workers back to work in advance of an injury will have the best outcomes after an injury occurs. 13
FRAUD IN THE PARTS DEPARTMENT Is Your Dealership Protected? BY LAURA EVERETT, CPA ALBIN, RANDALL & BENNETT, NHADA SILVER PARTNER Recently, our Auto Dealership Services Team shared an article that centered on a parts and service director charged with defrauding their auto dealership employer. This employee’s scheme involved ordering and receiving expensive manufacturer parts outside of the dealership’s dealer management system (DMS), selling the parts on Facebook at a discount, utilizing their personal PayPal account to accept customers’ payments, and using the dealership’s FedEx account to cover shipping costs. Meanwhile, the dealership was being billed and remitting payment to the manufacturer for these parts. Over less than two years, this employee’s fraudulent actions cost the dealership and its insurance company an estimated $600,000! Cases of fraud, such as the one described above, take a financial and emotional toll on a business but can be used as a learning opportunity for other business owners to determine if their current processes and controls could prevent and detect fraud. Take a moment to consider the following as it relates to your dealership: • Parts Pad to General Ledger (GL) Reconciliation: In the above example of fraud, the stolen parts were never included in the DMS inventory-on-hand, but payments were made to the manufacturer and would have been recorded in the GL parts inventory account. This would have created a growing variance between the parts pad and the GL. A parts pad to GL reconciliation should be prepared each month by the accounting team to determine that any variances between the parts pad and GL are known and expected. Any unknown and unexpected reconciling items should be researched fully. • Parts Inventory Cycle Counts and Year-End Physical Inventory Counts: These are key internal controls in the parts department. They also help with making sure your operation runs smoothly. Cycle counts are when a part is selected from the parts pad, traced to its location in the parts department, counted and compared to the number of units reported in the parts pad. The idea is that each part in the parts department is counted during the year, and adjustments are made as necessary. Additionally, a best practice is to engage a third party on an annual basis to perform a physical parts count. Like cycle counts, having a physical count completed would ensure the parts pad is accurate based on the inventory on hand. 14
Neither of these internal controls would have necessarily caught the scheme above, but they are still an important internal control to consider. They can be done in conjunction with the monthly and yearly general ledger to parts pad reconciliation. • Segregation of Duties: The segregation of duties involves the assignment of responsibility in such a manner that more than one employee is involved in the processing of a transaction. If an employee’s duties include the ordering of parts, receiving of parts and controlling the communications with the factory and the accounting department, the risk of intentional or unintentional errors increases. A review of your dealership’s processes and internal controls, including the adequacy of segregation of duties in all departments, is key to protecting all dealership assets. • Review of Expenses: A dealership’s accounting department should always include in its month-end procedures a detailed review of monthly expenses to ensure expenses are in line with expectations and free of unusual trends. If your dealership does not prepare a detailed budget to include expenses and perform a monthly budget to actual analysis, your dealership is missing a valuable tool to monitor the dealership’s performance and take note of fluctuations outside of expectations. • Auditing Vendor Statements: Before bills are paid, vendor invoices and statements should be reviewed, compared to supporting documentation and approved. Comparing the FedEx charges to supporting sales documents and sales proceeds could have led to identifying these fraudulent actions. Parts receiving procedures and a purchase order system can help detect these schemes as well. • Review of Key Performance Indicators (KPIs): If the OEM continued to bill the dealership and the dealership continued to pay for these expensive parts without ever selling and relieving inventory, an ever-increasing parts inventory GL balance would exist. Paying attention to KPIs like frozen capital, days supply in inventory and performing inventory flux analysis could help to identify anomalies in the dealership’s financial statements. Unfortunately, like death and taxes, fraud in the business world is a certainty and can occur where it is least expected. Business owners should expect there will always be employees who are motivated enough, able to rationalize and can identify opportunities to commit fraud. Review your insurance policies and understand how instances of this type of fraud are covered and whether your coverage is adequate. Investing in the design, implementation and monitoring of internal controls is also a small price to pay to protect your dealership from the financial and emotional costs of fraud. Contact an ARB Auto Dealership Services team member if you would like to discuss this further. BY BRIAN DUPLESSIS LOSS PREVENTION SUPERVISOR, NHADA As the weather cools and daylight hours dwindle, NHADA member employees encounter seasonal hazards like slippery roads and reduced visibility. To help mitigate these risks, Loss Prevention offers two concise (10-minute) industry-specific video trainings designed to raise awareness and promote best practices for injury prevention. The defensive driving training covers hazards related to weather, aggressive drivers, security concerns and more, providing essential principles of defensive driving. The winter safety video focuses on driving precautions, slip-and-fall prevention and safe storm cleanup techniques. Loss Prevention also offers free on-site training on a wide range of safety topics. Additionally, all trainings are available online for a nominal fee. To schedule this crucial risk management training, contact your loss prevention representative or reach out to Brian Duplessis at bduplessis@nhada.com. DEFENSIVE DRIVING AND WINTER SAFETY TRAININGS 15
ANNUAL WARRANTY LABOR RATE INCREASE Statutory or Factory Submission? BY JORDAN JANKOWSKI, ARMATUS DEALER UPLIFT, NHADA BRONZE PARTNER Every year, as dealers begin to work on their annual labor rate submissions, many are quick to grab their policies and procedures manuals to get started. For most, it’s a process that may involve filling out a competitive survey, producing a certain amount of consecutive qualified repair orders or a combination of the two. Does this process yield as much of an increase as the dealership wants or is entitled to? Many times, the answer is no. Most dealers are surprised to learn that a factory submission isn’t their only choice. In fact, 49 states have some type of legislation in place that allows dealers to perform a statutory labor submission. The purpose of a statutory submission is for a dealer to achieve warranty labor compensation at its retail rate, which is a market driven rate based on its warranty-like customer-pay repair transactions. Any dealer who is submitting for a labor rate increase should be evaluating its factory protocol and its statutory protocol to determine which is most advantageous. FACTORY SUBMISSIONS The guidelines for a factory labor submission are different for each manufacturer and can typically be found in your policies and procedures manual. The process can be as simple as filling out a competitive survey or as arduous as producing 100 sequential qualified repair orders; most manufacturers will require a combination of a survey and a certain amount of qualified repair orders. In some cases, it’s a quick and simple process to request your rate and wait for a response. While this process may seem enticing, there are some pitfalls to filing a factory submission. First, your manufacturer is not required to respond in a certain time frame; many dealers have told us they have waited months for a response, only to receive a significantly reduced offer. If this occurs, it is typically a “take it or it leave it” proposition. It is also possible that you’ll be afforded no increase, as to which you’ll likewise have no recourse. Although some factory protocols allow you to submit fewer total ROs than a statutory submission, following your state law may yield a greater increase for a variety of reasons. STATUTORY SUBMISSIONS A statutory submission will give the dealer more control over the process and possible outcomes. Although a statutory submission involves more complicated protocols and can be more work than a factory submission, the benefits usually make the additional work worth it. Most states require 100 sequential qualifying ROs that have been closed in the last 180 days and prescribe how the rate is to be calculated and what type of services can be excluded from the sample. Once the submission is complete, the manufacturer must respond within a specific time frame (usually 30 days), and most statutes will outline a rebuttal process if the manufacturer approves a reduced rate or offers no increase at all. To further expound on the benefits, let’s focus on three reasons why a statutory submission may be more advantageous than your factory protocol, and what services are available to help dealers through what might be an unfamiliar process. 1. Dealers Are Better Protected One of the biggest benefits of a statutory submission is the state laws in place that protect dealers from their manufacturers having unilateral control over the resulting labor rate. Although the factory protocols often require less work, it’s often advantageous to submit statutorily to put the dealer in control of the outcome, not the manufacturer. If you disagree with the outcome of your submission, most statutes have a rebuttal process in place that allows a dealer to dispute a rejection or reduction of its rate-increase submission. Simply put, a factory submission is controlled completely by the manufacturer and ultimately gives them the upper hand, while a statutory submission is controlled by state law to help dealers obtain a fair market rate from their labor submissions. 2. States Exclude Certain Repairs Many state laws have specific excluded repairs that are designed to eliminate from the sample non-repairs and non-warranty-like repairs to help you achieve your “true” retail rate. For example, the manufacturer’s rules may require that you include battery replacements or wheel alignments in your labor submission. This type of competitive routine maintenance work typically has a low effective labor rate and does not represent what you charge your customers for warranty-like repairs. Certain state laws allow you to exclude this type of work, as well as other non-retail repairs such as those paid for by service contracts/insurance companies, or repairs for fleets or government agencies. All of these exclusions are placed in the law to protect dealers from having to include non-warranty-like work in their labor rate calculation. 16
3. The Resulting Numbers Are Often Higher As previously mentioned, you should be evaluating both a statutory submission and a factory submission every year when contemplating a labor-rate increase. In most states, a statutory submission will have different rules than your factory protocol based on a number of specific nuances in the law. We’ve often had dealers ask why they would complete a statutory submission when their factory protocol required less work. Let’s say a manufacturer requires 20 consecutive qualified ROs that have closed in the last 30 days, which is far less than the 100 qualified ROs that most statutes require. You may wonder, how can a dealer get a larger increase providing five times the amount of ROs? One answer is that you can use the last six months of data in most states, rather than the limited timeframe prescribed by most factories. The larger data set for a statutory submission makes sure that your increase is indicative of your typical retail pricing policies, while a truncated period of time may be far less representative or be subject to an unfavorable work-mix. The extra work can seem daunting to a dealer who has only ever performed factory submissions, but it usually pays for itself. HOW DO I GET STARTED WITH MY STATUTORY SUBMISSION? The next time you are due to perform a labor rate increase submission, think twice about automatically submitting your factory RO sample or survey. A statutory submission can seem overwhelming to already overworked dealership personnel trying to focus on selling and servicing cars, but that’s where a qualified and well-referenced third-party vendor comes into play. A third-party vendor that is familiar with statutory submissions can guide you through the unfamiliar process and perform it for you, seamlessly. Before you decide to engage a vendor, you should ask yourself some key questions to make sure you are achieving the optimal result with the least disruption to your business: • Exactly how much work will the vendor be completing for your submission? The process between a vendor and dealer can be very different depending on who you work with. If you’re working with a best-in-class vendor to perform your submission, it should be completing all the work for you. If the vendor is asking you to complete tasks like pulling thousands of repair orders, you may be better off completing the submission yourself. • Does the vendor evaluate which submission type is best for you? Many vendors simply provide one form of submission over the other, without much thought given into which submission is right for the dealer. However, other vendors have processes in place that allow them to review a dealer’s data in a way that can identify the most profitable submission type. Most often, this is a statutory submission, but it is possible that a factory submission could be better — you won’t know for sure unless your vendor evaluates both opportunities. • How is the vendor ensuring you get the best result? Working with a best-in-class vendor means it will have software built specially to ensure the best labor rate submissions, based on both state and manufacturer guidelines. If a vendor says it can produce the best result, ask it how; get specific; there are lots of loose claims out there. Attempting to use spreadsheets or DMS reports may help avoid some unfavorable repairs but will make it nearly impossible to identify the optimal range to submit within the prior six months. Most of the time you can only submit one time per year, so missing the best possible rate will cost you for at least the next 12 months. NEXT STEPS A statutory submission doesn’t have to be as complex as it sounds; that’s why third-party vendors immerse themselves in state laws and factory behaviors, in order to give dealers the industry knowledge and tools needed to get you the best labor rate increase possible. With no commitment necessary, there’s really no reason not to take a look at working with a third-party vendor to see just how much you could be adding to your bottom line. If you’re interested in learning more about a statutory submission or have questions about the process, reach out to one of the labor rate increase experts at Armatus Dealer Uplift at info@dealeruplift.com. Dealers don’t have to lift a finger using Armatus services and are provided a no-obligation estimate of what you could be adding to your bottom line with a labor rate evaluation and submission. Jordan Jankowski is the chief operating officer of Armatus Dealer Uplift, a Hunt Valley, Maryland-based firm specializing in retail warranty reimbursement submissions. Starting as an auditor, Jordan built his knowledge base from the ground up, and today is recognized as an expert in this highly technical arena. Jordan manages a team of over 60 people, who have produced over 17,000 approved retail-warranty submissions. Any dealer who is submitting for a labor rate increase should be evaluating its factory protocol and its statutory protocol to determine which is most advantageous. 17
REVVING UP CAREERS IN AUTOMOTIVE Kicking Off Recruitment Season BY ADAM MEMMOLO WORKFORCE DEVELOPMENT COORDINATOR, NHADA We are gearing up for another exciting and impactful recruiting season dedicated to promoting careers in automotive. This past summer was spent connecting NHADA member businesses with students and career and technical education (CTE) programs, and we are thrilled to continue our efforts this fall. Some of the more effective recruitment methods include visiting high school classrooms and career fairs to showcase the dynamic opportunities within the automotive industry. This, of course, is always enhanced when we are accompanied by a member business to help tell the “real-world” story. Over the summer, we witnessed incredible enthusiasm from both students and automotive professionals. Our mission was clear: to bridge the gap between talented young individuals and the ever-evolving automotive sector. Through workshops, summer camps and one-on-one interactions, we highlighted the promising career paths and hands-on learning experiences that the automotive trade has to offer. Students who are most likely to end up in the industry include the ones who are already enrolled in an automotive CTE program. Here, students are already exploring the fundamentals of auto repair, diagnostics and technology. By visiting these students, we can provide an opportunity to delve deeper into how these programs align with real-world career opportunities and how students can transition from classroom learning to professional success. Students not yet enrolled in a program or who are “on the fence” are not forgotten in our recruitment efforts. We also visit general high schools and attend several career fairs throughout the school year. These events are crucial for reaching students who may not yet be aware of the rewarding careers in automotive. Our participation in these events allows us to educate students on diverse roles within the industry, from technician positions to managerial and entrepreneurial opportunities. Our success in recruiting students to the workforce relies on the active involvement of automotive professionals within the NHADA community. If you or someone from your business is interested in getting involved, we encourage you to reach out to the NHADA Foundation (foundation@nhada.com). Your participation can make a significant impact by providing firsthand insights into the industry, mentoring students and supporting our mission to cultivate the next generation of skilled professionals. Getting involved is easy and highly rewarding. You can contribute by participating in career fairs, joining an advisory board, offering internships or apprenticeships, hosting classroom visits or simply sharing your passion for the industry with students. Every interaction helps to demystify the field and inspire young minds to consider a career in automotive technology. Together, we can drive forward the future of the industry. Let’s make this recruiting season a success by connecting with students, showcasing the exciting opportunities within the field and fostering a new wave of talent ready to take on the challenges and innovations of tomorrow’s automotive landscape. 18
Recently, I had the privilege of attending the NADA Washington Conference alongside our chairman, Marshall Jespersen, and NADA director, David Hammer. During this event, we engaged in person with members of our congressional delegation and their staff/policy experts to discuss federal issues that could significantly impact auto dealers in New Hampshire. Conversations with our counterparts from other states reinforced the crucial role that our elected officials play in shaping the future of our industry and the importance of maintaining strong relationships with them. Supporting elected officials who understand and advocate for the needs of our industry is essential to our continued success. We must ensure that the people representing us at the local, state and federal level recognize the challenges we face and are committed to finding solutions that benefit dealers and the communities we serve. Elections have consequences. While we would never tell or ask you who to vote for, we encourage every member to recognize the immense privilege of living in a democracy where your voice counts. Voting isn’t just a right; it’s a responsibility. In many parts of the world, people long for the opportunity to participate in free and fair elections. We have that freedom, and it’s crucial that we make the most of it. So, as elections approach, take the time to research the candidates, understand their positions and make an informed decision that supports both your values and the future of our industry. ELECTIONS HAVE CONSEQUENCES BY DAN BENNETT, REM, IOM, CAE PRESIDENT, NHADA Courtesy of New Hampshire Secretary of State Rilynn Bolen’s winning entry shows a moose standing on a ledge in front of an autumnal vista of Mount Washington with “I Voted” written across a blue sky. Courtesy of New Hampshire Secretary of State Jacob, a fourth grader from Auburn, drew a cartoon-like figure shaped like the state of New Hampshire, fishing by a lake under a sky of stripes and stars. 19
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